Sovereign Inupiat for a Living Arctic v. Bureau of Land Mgmt.

1

SOVEREIGN IÑUPIAT FOR A LIVING ARCTIC, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants. CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. BUREAU OF LAND MANAGEMENT, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.

Nos. 3:23-cv-00058-SLG, 3:23-cv-00061-SLG

United States District Court, D. Alaska

December 1, 2023

ORDER RE MOTIONS FOR INJUNCTION PENDING APPEAL

SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

Before the Court are SILA Plaintiffs' Motion for Injunction Pending Appeal at Docket 169 (Case No 3:23-cv-00058-SLG)^[1] and CBD Plaintiffs' Rule 62(d) Motion for Injunction Pending Appeal at Docket 190 (Case No 3:23-cv-00061-SLG).^[2]Federal Defendants responded at Docket 175 (Case No. 3:23-cv-00058-SLG).^[3]Intervenor-Defendants ConocoPhillips, Inc. (“ConocoPhillips”), Kuukpik Corporation (“Kuukpik”), Arctic Slope Regional Corporation (“ASRC”), North Slope Borough (“NSB”), and the State of Alaska (“State”) responded in opposition at Dockets 177 180-82, and 184 (Case No. 3:23-cv-00058-SLG), respectively. In addition, at Docket 183 (Case No. 3:23-cv-00058-SLG), the Alaska Congressional Delegation and Alaska State Legislature have filed an amicus brief.^[4] Oral argument was not requested and was not necessary to the Court's determination. For the reasons set forth below, Plaintiffs' motions will be denied.

BACKGROUND

Plaintiffs challenge the Bureau of Land Management's (“BLM”) approval of the Willow Project, an oil and gas development by ConocoPhillips in the National Petroleum Reserve in Alaska (“Reserve”).^[5] Bringing suit pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, Plaintiffs claimed that BLM and other Federal Defendants violated the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321 et seq., the Naval Petroleum Reserves Production Act ("NPRPA"), 42 U.S.C. § 6501, et seq., the Alaska National Interest Lands Conservation Act (“ANILCA”), 16 U.S.C. § 3101 et seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq.^[6]

On April 3, 2023, the Court denied Plaintiffs' Motions for Temporary Restraining Order and Preliminary Injunction to halt Willow Project construction for the remainder of that winter season.^[7] The Court found that Plaintiffs could not show a likelihood of irreparable harm and “the balance of the equities and the public interest tipped sharply against preliminary injunctive relief.”^[8] After initially appealing the denial of a preliminary injunction, Plaintiffs later sought voluntary dismissal of those appeals, which the Ninth Circuit granted on May 19, 2023.^[9]

On November 9, 2023, this Court found that Federal Defendants did not violate the APA and denied Plaintiffs' request for vacatur of approval of the Willow Project.^[10] Plaintiffs filed notices of appeal to the Ninth Circuit Court of Appeals.^[11]They now seek to enjoin “all construction activities related to Willow to ensure the status quo is maintained” while their appeals are pending.^[12]

LEGAL STANDARD

“The standard for evaluating an injunction pending appeal is similar to that employed by district courts in deciding whether to grant a preliminary injunction.”^[13] Parties seeking preliminary injunctive relief must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of injunctive relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest.^[14] Where, as here, the government is a party to the action, the final two Winter factors-the balance of the equities and the public interest-merge.^[15]

DISCUSSION

I. Likelihood of Success on the Merits

Plaintiffs seeking injunctive relief must show a likelihood of success on the merits.^[16] Alternatively, in the Ninth Circuit, if a plaintiff demonstrates “that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor.'”^[17] “Serious questions are ‘substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.'”^[18] They “need not promise a certainty of success, nor even present a probability of success, but must involve a ‘fair chance on the merits.'”^[19]

SILA Plaintiffs assert that on appeal they are “likely to prevail on [their] claims that BLM failed to comply with the . . . []NPRPA[] and . . . []NEPA[] by failing to consider a reasonable range of alternatives sufficient to protect surface resources and mitigate impacts to subsistence uses and resources.”^[20] Similarly, CBD Plaintiffs argue that “they are likely to succeed on the merits of their claims that BLM violated . . . []NEPA[] by failing to consider a reasonable range of alternatives and by failing to consider Willow's reasonably foreseeable climate impacts.”^[21] As several Defendants correctly observe, Plaintiffs' current motions do not present any new arguments regarding their NEPA and NPRPA claims beyond what was already considered and rejected by the Court.^[22] For the reasons discussed in the Court's order denying Plaintiffs' request for vacatur of the approval of the Willow Project, the Court finds that Plaintiffs have not shown a likelihood of success on the merits on their claims.^[23]

Further, Plaintiffs have not raised serious questions going to the merits on their claims. CBD Plaintiffs cite City of Oakland v. Holder, In re Porrett, and Masters Software, Inc. v. Discovery Communications, Inc., for their assertion that they have raised a serious question sufficient for an injunction pending appeal.^[24]In City of Oakland, the plaintiff raised an issue of first impression, which the district court found presented a serious question.^[25] In Porrett, the court distinguished a case that, “at first blush, appear[ed] to be on point” to ultimately find that the case's analytical approach did not apply after a “close reading” of case law.^[26] And Masters Software granted the defendant's motion to stay a preliminary injunction pending appeal because plaintiff's theory was “rarely successful” and so the defendant “at least raised serious questions relevant to its prospects for success.”^[27]

In contrast, this case “involve[s] applying well-established Ninth Circuit law to important and primarily legal questions”^[28] and does not present an issue of first impression, competing analytical approaches, or a “rarely successful” legal theory. Accordingly, Plaintiffs have not shown that there is a serious question going to the merits of their claims.

II. Irreparable Harm

A party seeking injunctive relief pending appeal must show that they themselves will suffer irreparable harm absent an injunction^[29] and that there is “a probability of irreparable injury if the stay is not granted.”^[30] “A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened injury as a prerequisite” to injunctive relief.^[31] Further, “[t]here must be a ‘sufficient causal connection' between the alleged irreparable harm and the activity to be enjoined,” such as a “showing that ‘the requested injunction would forestall' the irreparable harm.”^[32]“[T]he movant, by a clear showing, carries the burden of persuasion.”^[33]

“Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.”^[34] “Of course, this does not mean that ‘any potential environmental injury' warrants an injunction.”^[35] Because injunctive relief pending appeal is an equitable remedy, there is no presumption of irreparable harm, even in cases involving environmental impact.^[36]

Plaintiffs seek to enjoin Willow's upcoming winter construction activities in order to “maintain current conditions on the ground” while they appeal.^[37]Presently, non-surface-disturbing activities are ongoing.^[38] ConocoPhillips intends to “recommence” surface-disturbing activities “no sooner than December 21, 2023,” and continuing through May 2024.^[39] Therefore, the Court focuses on whether Plaintiffs can show they will be irreparably harmed by ConocoPhillips' planned 2023-2024 winter construction activities unless this Court enters an injunction pending appeal.

During last winter's construction season, which concluded in May 2023, ConocoPhillips opened a gravel mine site (Mine Site Area 2), built two miles of gravel road to extend a road referred to as GMT-2, and began constructing a subsistence boat ramp on the Ublutuoch (Tiŋmiaqsiuġvik) River.^[40] Planned 2023-2024 surface-disturbing winter work includes installation of approximately 13 miles of pipelines and supports, eight miles of gravel road, a road spur and pad access an airstrip access road and airstrip apron, gravel pads for the Willow Central Facility and Willow Operations Center, and a bridge; completion of the first subsistence boat ramp; and construction of two additional subsistence ramps.^[41]Gravel mining will also continue at Mine Site Area 2, and ConocoPhillips plans to open a second mine site (Mine Site Area 1).^[42] Mine Site Area 1 will be slightly closer to Nuiqsut than Mine Site Area 2, but both mines are “about 7 miles west of Nuiqsut.”^[43] ConocoPhillips intends to have 1,800 personnel working on the Willow Project during the 2023-2024 winter construction season.^[44] ConocoPhillips will not produce any oil or gas at Willow during the 2023-2024 or 2024-2025 seasons^[45]; nor will there be any construction in the...